Burns v McKee [2015] NSWCATAD 158

Burns v McKee [2015] NSWCATAD 158

Although there was no evidence of the content of the conversation, a fair minded lay observer might reasonably apprehend that a private conversation between the presiding member and a party who is now the applicant, in the absence of the other party, could mean the member might not bring an impartial and unprejudiced mind to the matter; the member therefore recused herself.

Jurisdiction
Australia
Judgment Date
25 May 2015
Procedural Posture
Application for Disqualification or Recusal for Apprehended And/or Actual Bias / Ex Tempore Procedural Ruling
Outcome
Application for disqualification of member for apprehended bias upheld.
Legal Topics
['apprehended Bias' 'actual Bias' 'recusal' 'private Conversation With a Party' 'case Conference']
['administrative Law' 'anti Discrimination Law' 'procedural Fairness'] ['apprehended Bias' 'actual Bias' 'recusal' 'private Conversation With a Party' 'case Conference']

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Procedural Posture

Application for Disqualification or Recusal for Apprehended And/or Actual Bias / Ex Tempore Procedural Ruling

Legal Issues

  1. 1 ['Whether the presiding member should recuse herself on the ground of apprehended and/or actual bias after the respondent observed the member in private conversation with the applicant in an earlier matter.' 'Whether it was necessary to address the alternative ground for recusal based on Burns v Gaynor [2015] NSWCATAD 24.']

Ratio Decidendi

Although there was no evidence of the content of the conversation, a fair minded lay observer might reasonably apprehend that a private conversation between the presiding member and a party who is now the applicant, in the absence of the other party, could mean the member might not bring an impartial and unprejudiced mind to the matter; the member therefore recused herself.

Court Disposition

Application for disqualification of member for apprehended bias upheld.

Orders

  • ['The presiding member recused herself.' 'The matter will be rescheduled for another day.']